Munwar Sultana vs Vijaya Bank and Others

B. Siva Sankara Rao, J.—These revisions, under Sections 397 and 401 of Cr.P.C., are filed against the orders dated 27.11.2012 passed by the Prl. Sessions Judge, Nellore, in Crl. R.P. Nos. 64 & 70 of 2012, which were filed against the orders, dated 06.09.2012, passed by the II Additional Judicial Magistrate of First Class, Nellore, in Crl. M.P. Nos. 2051 & 2050 of 2012 in C.C. No. 727 of 2006.

In both the revisions, complainant - Vijaya Bank is the first respondent. The said Bank filed a private complaint against the revision petitioner herein for the offence punishable under Section 138 of N.I. Act. The said complaint was numbered as C.C. No. 727 of 2006.

The parties hereinafter referred to as arrayed before the trial court.

Pending disposal of the above C.C., the complainant filed Crl. M.P. Nos. 2051 & 2050 of 2012, viz., under Section 482 of Cr.P.C. and under Section 311 read with 482 of Cr.P.C. and under Section 139 of N.I. Act, the relief sought for permitting the amendment of the private complaint i.e. "in the reply notice, dated 15.02.2006, signed on 17.02.2006 the accused admitted the debt for which she gave the cheque which was bounced" and to recall P.W. 1 for further chief examination.

In Crl. M.P. No. 2051 of 2012, the learned counsel for the complainant, before the learned Magistrate, submitted that while drafting the complaint, the said reply notice is misplaced, as such the said fact could not be mentioned and thereby it requires amendment of the private complaint to incorporate the said portion is even outcome of any bona fide mistake and the learned Magistrate came to a conclusion that there is no enabling provision for the Court to permit amendment and the mistake is not even typographical to take aid of the single Judge expression of the Rajasthan High Court in Bhim Singh Vs. Kan Singh, where permitted a typographical mistake of the cheque number in the complaint and the other two expressions of Bombay High Court and the Delhi High Court in Chandrakant Bhanudas Labde Vs. Shobhabai Chandrakant Labde and Another, and Sabita Sahoo Vs. Capt. Khirod Kumar Sahoo, are outcome of the proceedings under Section 125 of Cr.P.C., which are quasi Civil in nature; where it was held that the provision under Order VI Rule 17 of C.P.C. speaks that it can be invoked to the amendment of the pleadings of the parties in the maintenance case; thus it cannot be invoked to the private complaint case for dishonour of cheque and thereby dismissed. Aggrieved by the same, the complainant preferred Crl. R.P. No. 64 of 2012 before the learned Sessions Judge, Nellore, seeking to set aside the order of the learned Magistrate. The learned Sessions Judge, Nellore allowed the Crl. R.P. relying on the above referred expression in Bhim Singh''s case (supra) in saying that the trial court did not grasp the said ruling even it was observed that inherent power can be invoked by the trial court for dispensation of justice for so allowing.

Coming to the Crl. M.P. No. 2050 of 2012, the learned Magistrate dismissed the application as the Crl.P. No. 2051 of 2012 referred above was ended in dismissal by order of the learned Magistrate dated 06.09.2012, and the same was also allowed in Crl.R.P. No. 70 of 2012 by the learned Sessions Judge having allowed the Crl. R.P. No. 64 of 2012 (supra).

In fact, the prayer in the petition for recall shows that there is a presumption of the cheque issued is for discharge of legally enforceable debt as held by the Apex Court in Rangappa Vs. Sri Mohan, , and it is for the accused to rebut the said presumption by raising a probable defence and the defence of the accused that the cheque issued for the purpose of security only is untenable; and in fact he admitted in his reply notice in support of the complaint case, such reply was misplaced the factum of the said admission in the reply could not be reflected in the complaint and in this regard it is necessary to recall P.W. 1 for eliciting these facts by further chief examination. It was not practically answered by the trial court and simply dismissed the petition sought for recall of P.W. 1. Aggrieved by the same, the complainant preferred Crl. R.P. No. 70 of 2012, wherein the learned Sessions Judge allowed the said application in saying that when it is the case of the complainant - bank that accused issued a reply admitting her liability of the debt, which is legally enforceable from the presumption as per the expression in Rangappa''s case supra and as the amendment of the pleading is permitted, this petition is also allowed for recall of P.W. 1. Impugning the same, the present Crl. R.C. Nos. 328 and 329 of 2014 are filed.

The learned counsel for revision petitioner - accused impugned the orders supra contends that there are no grounds either to recall P.W. 1 permitting for further chief examination, much less, to permit the amendment, hence to set aside the impugned orders of the learned Sessions Judge by restoring the orders of the learned Magistrate.

Whereas the learned counsel appearing for the complainant-bank, as first respondent in both the revisions supported the order of the learned Sessions Judge and also drawn attention of this Court to the expression of Rajasthan High Court in Bheem Singh''s case supra, particularly, paras 5 to 10.

Heard and perused the material on record. The two revisions for any non-maintainability under Section 397(3) Cr.P.C. are taken up for hearing under Section 482 Cr.P.C. vide decision of the Apex Court in Krishnan and another Vs. Krishnaveni and another, .

Both the revisions arisen from out of the orders in Crl. R.P. Nos. 64 and 70 of 2012 against the orders in Crl.P. Nos. 2051 & 2050 of 2012 in one and the same C.C. No. 727 of 2006. Hence, these are taken up together for common disposal and for the sake of convenience.

Now the points that arise for consideration are,

Whether the amendment sought for in the complaint can be permitted. If not, whether the impugned order of the learned Sessions Judge in Crl. R.P. No. 64 of 2012 against the dismissal order of the learned Magistrate in Crl. M.P. No. 2051 of 2012 is unsustainable, equally in allowing recall petition for recalling P.W. 1 impugned in Crl. R.C. No. 329 of 2013 covered by Crl. R.P. No. 70 of 2012 of the learned Sessions Judge against the dismissal of the Crl. M.P. No. 2050 of 2012, if so with what observation?

To what result?

Point No. 1:

In Criminal Procedure Code, undisputedly, there is no provision for permitting the amendment of the complaint. In fact, what is averred in the complaint is not be all and end all. It is the evidence that is being let in, in pursuance of the private complaint case, by the complainant and the witnesses on behalf of the complainant, if any that is criteria, subject to the admissibility and relevancy, leave about the credibility of the witnesses and probative value of the documents as part of appreciation of evidence. Needless to say, there is right to the accused against the complainant version with reference his evidence in chief to confront and to bring on record any material omissions tantamount to contradictions under Section 162 of Cr.P.C. or any contradictory versions under Section 145 read with 155(3) of Indian Evidence Act. From this coming to know to decide on any inherent power inheres on the criminal court or on the Magistrate or on a Sessions Judge is concerned, undisputedly there is no provision equal to Section 482 of Cr.P.C. saving inherent powers in them. Section 482 Cr.P.C. saves only the inherent powers of the High Court. Though the wording of Section 151 of C.P.C. is similar to the wording of Section 482 of Cr.P.C., so far as Section 151 C.P.C. is concerned, it saves the inherent power of every Civil Court which inheres from its very constitution to undo a wrong or to prevent any abuse of process of law or for rendering complete justice between the parties and to subserve the ends of justice. As such a provision is not there to a Magistrate Court or Sessions Court, for the inherent power is saved only in respect of the High Court under Section 482 Cr.P.C. within the legislative wisdom. Thereby, any argument much less by placing reliance on the expression of Rajasthan High Court in Bheem Singh''s case (supra) irrespective of non saving of inherent power to the Magistrate under Section 482 of Cr.P.C., there is in built inherent power on the Magistrate, is untenable that too such power if at all to exercise is only for clerical or arithmetical mistakes to rectify by the Court or on the direction of the Court to the parties, which no way empowers or effect the right of either party there from, and not otherwise. Even the Latin maxim "Quado lex aliquid alicui concedit concodere videtur id sine qua ipsa essee non potest" speaks that it is only to exercise the power by legal fiction or deemed existence, where it shows impossibility of disposal of a matter. It is not even such a contingency here and thus the complainant bank is not entitled to thrust that proposition. Thereby the impugned orders of the learned Sessions Judge, setting aside the dismissal order of the learned Magistrate covered by Crl. R.P. No. 64 of 2012 in permitting the amendment of the complaint is untenable and is liable to be set aside within the scope of Section 482 of Cr.P.C.

Coming to the impugned order in Crl. R.P. No. 70 of 2012 against the orders in Crl. M.P. No. 2050 of 2012 permitting to recall the P.W. 1 for further chief examination, as stated supra, once it is a material for the complainant to say that the accused made an admission about the cheque amount due, to say within the wording of explanation to Section 138 read with 139 of N.I. Act, the debt or other liability means legally enforceable debt or other liability for such presumption as laid down in the three Judges Bench expression of the Apex Court in Rangappa supra, said recall of P.W. 1 can be permitted for further chief examination to sub serve the ends of justice not only under Section 311 Cr.P.C. but also within the power of the Court under Section 165 of Indian Evidence Act which provision is equally applicable in Criminal cases vide P. Sanjeeva Rao Vs. The State of A.P., . Thereby that too when the learned Magistrate simply dismissed that application without even assigning any reasons and without even considering the scope of two provisions by observing as if dismissal of the complaint amendment petition entitled to dismiss the P.W. 1 recall petition. Having regard to the above, the learned Sessions Judge is right in allowing the revision, hence the order of the learned Sessions Judge passed in Crl. R.P. No. 70 of 2012 holds good. Accordingly, point No. 1 is answered.

Point No. 2:

In the result, Crl. R.C. No. 328 of 2013 is allowed setting aside the order of the learned Sessions Judge in Crl. R.P. No. 64 of 2012 and by confirming the order of the learned Magistrate in Crl. M.P. No. 2051 of 2012 and however the Crl. R.C. No. 329 of 2013 is dismissed, confirming the order of the learned Sessions Judge in Crl. R.P. No. 70 of 2012 in the pending C.C. No. 727 of 2006 on the file of the learned Magistrate at Nellore.

Miscellaneous Petitions pending, if any, in these revisions shall stand closed.